Fringe Legal Positions and the Supreme Court's ACA Decision Commentary
Fringe Legal Positions and the Supreme Court's ACA Decision
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JURIST Guest Columnist Neil Buchanan of the George Washington University Law School says that, of the broad lessons to be learned from the Supreme Court’s ACA decision, the most important is how quickly and effectively a fringe legal position can turn mainstream and even change settled law…

As we now know, the US Supreme Court upheld almost all of the Affordable Care Act (ACA) on June 28, 2012, approving the “individual mandate” to buy private insurance or to pay money to the government under the US Congress’ taxing power in the US Constitution. The initial hysteria surrounding the Court’s decision has mostly subsided, and we can now draw a few broad lessons from this signature legal and political event.

The most important lesson is, I think, how quickly and effectively a fringe legal position can be promoted by a well-funded and carefully coordinated campaign into something that the courts will take seriously. The best comparison to the ACA case, both for its similarities and its differences, is the Supreme Court’s 2008 decision in District of Columbia v. Heller, in which the Court abandoned decades of precedent and interpreted the Second Amendment as conferring a limited individual right to possess firearms for the purpose of home protection.

How is Heller like the ACA case? In both cases, there was an established legal doctrine that simply ruled out — nearly to the point of frivolousness — the plaintiffs’ position. In Heller, the accepted understanding of the Second Amendment had been that the right to bear arms was limited to the context of state militias. The Supreme Court abandoned that settled law in order to find in favor of the “individual rights view.” In the ACA case, the idea that the individual mandate violated the Commerce Clause was simply not supported by existing law. Legal scholars on both the left and the right all agreed that and, in order to find in favor of the law’s challengers, the Court would again have to invent new law.

We now know that, in the ACA case, five justices did agree on that novel view of the Commerce Clause. Few expected that Chief Justice John Roberts would join with the four justices on the “liberal” side of the court to uphold the law on taxing power grounds, but we all know, going forward, that the Commerce Clause now means something different than it did little more than a month ago.

Both Heller and National Federation of Independent Businesses v. Sebelius, therefore, involved activist decisions by the Supreme Court that significantly altered established doctrine. What is notably different, however, is the lightning speed with which this occurred in the ACA case. The gestation period for the new doctrine that was ultimately adopted in Heller was twenty years or more and involved a broad-based campaign to move the argument into the mainstream of legal and political discussion, which involved funding for academic research and conferences.

This process played out in the ACA case in less than one-tenth the time. The view embodied in the newly recognized distinction between activity and inactivity went from being little more than a laugh line to a 5-4 Supreme Court decision, in less than two years. Of course, the idea that this “validates” the arguments of those who opposed the ACA is a bit strained, given that the same political forces that pushed the doctrinal changes in Heller and the ACA have been instrumental in populating the courts with judges who would be open to the arguments from the plaintiffs in those cases. It is hardly surprising when one side’s hand-picked umpires call balls and strikes in that side’s favor.

Even so, the speed with which this new doctrine was injected into a Supreme Court decision was, to say the least, notable. That does not necessarily mean that every area of the law is so easily changeable, but it does tell us something — something unsettling, in my view — about how the law can be changed by committed and well-financed advocates.

The second lesson that we might learn from the Court’s ACA decision is that Commerce Clause jurisprudence is going to be narrowed even further. It ultimately does not matter whether the activity-inactivity language of the five most conservative justices is part of the holding of the case, or mere dicta. The point is that there are five justices who, if given the chance, will apply this new logic in ways that will further limit Congress’s power under the Commerce Clause.

Some scholars, for example Vikram Amar from the UC Davis Law School, have pointed out that this new doctrine might ultimately be unimportant because a future Congress can read the ACA case and draft its laws to make clear that it is regulating activity, not inactivity. This, the argument goes, is easy because the activity-inactivity distinction is meaningless, depending ultimately upon how one describes the economic behavior that might be regulated.

While that may be true, one cannot help but suspect that this Court would be more than willing to reject Congress’s framing of its own legislation — with the Court, at its whim, characterizing as inactivity anything that it might wish to strike down.

The important aspect of these justices’ Commerce Clause arguments, therefore, is not that they created a way to know which laws might be struck down, but that they created an empty canvas onto which they will soon paint their preferred picture of what Commerce Clause jurisprudence should look like. These justices were perfectly willing to continue to narrow the Commerce Clause anyway, but the ACA case afforded them an opportunity to announce that all bets are now off regarding Commerce Clause jurisprudence.

Finally, perhaps the most surprising lesson from the Court’s decision in the ACA case is how little difference the “broccoli example” made. I do not mean this merely from the standpoint that the five-justice majority held that Congress has powers under its taxing authority that it lacks under the Commerce Clause. Even the joint dissent, which I have described elsewhere as a failed attempt to elevate form over substance in describing what is a tax, was actually willing to admit that the taxing power was broad enough to allow Congress to force people to eat broccoli (or, at least, to pay money to the government if they do not want to buy broccoli).

The dissenters, after all, admitted that Congress possessed the power to impose the individual mandate under the ACA. As I recently discussed, the dissenters’ objection was merely that Congress should have been forced to call a tax a tax, rather than a penalty. If Congress had done so, the dissenters apparently would be willing to say that Congress can do what it did in the ACA — and therefore, presumably, that it can also do what it might wish regarding broccoli or any of the other parade of horribles that the opponents of the ACA emphasized.

In short, the big lessons to be learned from the ACA case amount to a new understanding of how the legal system works. Settled law can be changed in record time — in a way that reduces the clarity of the law and that serves a purpose completely disconnected from the stated objections (in this case, the claims of personal freedom) that are supposedly at stake in the case. None of this should increase our confidence in the legal system, but we ignore such lessons at our peril.

Neil Buchanan is a Professor of Law at the University of George Washington Law School, specializing in tax law and policy. He also holds a Ph.D. in economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs, and Social Security.

Suggested citation: Neil Buchanan, Fringe Legal Positions and the Supreme Court’s ACA Decision, JURIST – Forum, Aug. 2, 2012,

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